Sujith and Grace Davis v A.J. Joseph and Sobin Mathew (O.P(C).No.108/2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 1[ST] DAY OF APRIL 2022 / 11TH CHAITHRA, 1944 OP(C) NO. 108 OF 2022** **THE ORDER DATED 6.1.2022 IN I.A 5/2021 IN O.S 224/2017 AND O.S 225/2017 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT,** ## **KOTTAYAM.** ## **PETITIONERS/PETITIONERS IN I.A/DEFENDANTS IN SUITS:** - **1 SUJITH, AGED 38 YEARS,** - **S/O. P C DAVIS, PARAVARAKATHU HOUSE, AMBARANIRAPPEL P.O, BHARANGANAM, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686577.** **2 GRACE DAVIS, AGED 63 YEARS,** **W/O P C DAVIS, PARAVARAKATHU HOUSE, AMBARANIRAPPEL P.O, BHARANGANAM, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686577.** **BY ADVS. P.SANJAY A.PARVATHI MENON BIJU MEENATTOOR KIRAN NARAYANAN PAUL VARGHESE (PALLATH) P.A.MOHAMMED ASLAM PRASOON SUNNY RAHUL RAJ P.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 A.J.JOSEPH, AGED 65 YEARS, S/O JOHN, ALUMKAL HOUSE, ANICKADU EAST P O, ANICKADU KARA, ANICKADU VILLAGE, KOTTAYAM TALUK, (PLAINTIFF IN O.S NO.224/2017), PIN-686503.** O.P(C).No.108/2022 2 **2 SOBIN MATHEW, AGED 45 YEARS, S/O MATHEW, PULIYURUMBIL HOUSE, ELAMPALLY P O, ANICKADU VILLAGE, ELAMPALLY KARA, KOTTAYAM TALUK, (PLAINTIFF IN O.S 225/2017), PIN-686503.** **BY ADV I.DINESH MENON** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON** **23.03.2022, THE COURT ON 01.04.2022 DELIVERED THE FOLLOWING:** O.P(C).No.108/2022 3 _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C). No.108 of 2022_ ================================ _Dated this the 1[st] day of April, 2022_ ## _**J U D G M E N T**_ This is an Original Petition filed under Article 227 of the Constitution of India by the defendants in O.S.Nos.224/2017 and 225/2017, challenging the order in I.A.No.5/2021 dated 06.01.2022. Plaintiffs in the above Suits are the respondents herein. 2. Heard both sides in detail. Written objection was filed by the 1st respondent. 3. Short facts: I.A.No.5/2021 is an application filed by the defendants under Section 151 and Order 16 Rule 10A of the Code O.P(C).No.108/2022 4 ## of Civil Procedure seeking the following reliefs: _“For the reasons stated in the accompanying affidavit it is humbly prayed that this Hon'ble Court may be pleased to appoint a hand writing expert for the comparison of the disputed signatures of late Mr. P.C.Davis and the signature of Grace Davis in the alleged promissory note (Exbt A-1) and the alleged Acknowledgment letter (Exbt A-1(a)) with the admitted signatures of the said later Mr. P.C.Davis in the cheques which are marked as Exbt A-2 and A-8 and the signature of the 2nd defendant Smt. Grace Davis which may be taken by this Honourable Court and in the documents that may be produced as per the direction of the Court and direct the hand writing expert to submit a report before the Court comparing the said disputed signatures with the original admitted signatures of late Mr. P.C.Davis and the 2nd defendant in the above cases.”_ 4. The plaintiffs zealously opposed grant of the reliefs as sought for. The learned Munsiff addressed the rival contentions and finally dismissed the application holding that the documents sought to be sent for expert opinion, viz., A1 and A1(a), are acknowledgment letters supporting the contention raised by the plaintiffs based on 2 cheques alleged to have been executed by one P.C.Davis, the husband of the 2nd defendant. The Munsiff also found that the petition was filed when the case was posted for O.P(C).No.108/2022 5 defendants' evidence, after completion of the plaintiffs' evidence. Therefore, the learned Munsiff found that there is no reason to allow the petition filed belatedly to get opinion evidence in relation to the documents which are supporting only the original transactions alleged to be taken place in between the plaintiffs and the defendants based on 2 cheques issued by P.C.Davis, who is no more. 5. Advocate Parvathy Menon.A, who appeared for the petitioners, argued at length to convince this Court that the defendants P.C.Davis and Grace Davis emphatically denied their signatures in Exts.P7 (Ext.A1 before the trial court) and Ext.P7(a) (Ext.A1(a) before the trial court). Thereafter, when the plaintiffs were examined, their evidence also is not clear in the matter of execution of Exts.A1 and A1(a). Therefore, expert opinion as regards to the signature in Exts.A1 and A1(a) are necessary to prove that those signatures were not written by P.C.Davis or Grace O.P(C).No.108/2022 6 Davis. In this attempt, the learned counsel's attention was brought to the written statement filed by the defendants. Going through the averments therein, it is clear that though the transactions as alleged by the plaintiffs were denied in general, the signature of Grace Davis alone was disputed in so far as Exts.A1 and A1(a) are concerned. As regards to the signatures of P.C.Davis, there is no specific denial in the written statement. As such it could be seen that the signatures in Exts.A1 and A1(a) as that of P.C.Davis not denied in the written statement. Moreover, it is relevant to note that P.C.Davis is no more and it is difficult to get sufficient number of signatures of P.C.Davis for comparison with that of signatures of P.C.Davis in Exts.A1 and A1(a), in a case, where-in the written statement the defendants never denied the signatures of P.C.Davis in the above documents. 6. In the objection filed by the plaintiffs, it has been contended that during cross examination of PW1, the defendants O.P(C).No.108/2022 7 disputed the signatures in Ext.A2 cheque too, and therefore, no document available to compare Exts.A1 and A1(a) with that of admitted signatures of P.C.Davis. In para.4 of the objection it is contended as under: _“4. The general rule with regard to the burden of proving the facts is that “He who asserts, must prove”. The reason behind this rule is that he who drags another into the court must bear the burden of proving the facts, which he asserts. The burden of proof of documents is understood in the following two series. (1) Firstly, it means establishing the whole case. (2) Secondly, it means introducing evidence at any particular stage of the proceedings. It can be known from Sec.101 to 114 of the Indian Evidence Act. Especially Sec. 101 imposes the burden of proving a fact on that person who substantially alleges an affirmative of the issue under this provision. Whenever a person desires the court to give judgment as to any of his legal right or liability of the other based on the existence of the facts, which he asserts, it is necessary that he must prove the existence of those facts, even with documentary evidence. Section 102 fixes the burden of proving the facts in any suit or proceeding on that person who would fail, if no evidence at all were given on either side. So that, if a person want to prove the legality of any document for his favour, the burden generally lies on him to prove it in court of law. Whenever a question as to the good faith of a transaction between the parties arises and one of the parties stands to the other in a position of active confidence, the burden of proving the good faith of the transaction shall be on that party, who is in a position of active confidence.”_ 7. Following the decision of the Apex Court reported in O.P(C).No.108/2022 8 [(2013) 4 SCC 546], _**Mallikarjuna Rao (by Lrs) & Ors. v. Nalabothu Punnaiah**_ , it is contended that the handwriting experts opinion u/sec. 45 & 73 of the Evidence Act is a week evidence and court should be slow to base their findings solely on such opinion, but should apply their own mind and take a decision. It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/signature under Section 45 of the Indian Evidence Act, 1872. The legal position being so the inordinate delay is also crucial. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory O.P(C).No.108/2022 9 ## standards. 8. The above legal position was earlier held in para.28 of the decision reported in [AIR 2013 SC 633], _**Ajay Kumar Parmar**_ ## _**v. State of Rajasthan**_ , as under: _“28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the court from comparing signaturesor handwriting, bu using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court,_ O.P(C).No.108/2022 10 _therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision.”_ 9. Here the crucial question is whether the prayers in the petition, refused to be granted by the trial court, are liable to be allowed by unsettling the order impugned. As I have already pointed out, the defendants never denied the signatures of P.C.Davis, either in the cheques or in the supporting promissory note as well as acknowledgment letter. It is true that in the written statement, signatures of Grace Davis in Exts.A1 and A1(a) were denied. However, no steps taken by the defendants to get expert opinion to prove the same till the examination of PW1, in a Suit filed in the year 2017. As I have already pointed out, P.C.Davis is no more even at the time of filing the Suit. Issuance of original cheques by P.C.Davis was admitted, but liability admitted is for a O.P(C).No.108/2022 11 lesser amount. It has been contended that the admitted liability, led to issuance of the above cheques, was settled and liability was closed. As such plea of discharge is the defence. Thus it appears that signatures of P.C.Davis in the Suit documents are admitted while disputing the signatures of Grace Davis in Exts.A1 and A1(a). Admittedly those are supporting documents. If at all no such documents are there, then also, the plaintiffs could very well canvass decree, if the plaintiffs succeed in proving the transactions and execution of the cheques for the sum claimed in the Suit, issued by P.C.Davis. In such a case, there is no necessity to get opinion evidence, as sought for in the petition, that too, filed at a much belated stage. In view of the matter, the order impugned does not suffer from any perversity, illegality or arbitrariness. In the result, this Original Petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.108/2022 12 ## **APPENDIX OF OP(C) 108/2022** ## **PETITIONERS' EXHIBITS** |**Exhibit P1**|**TRUE COPY OF THE PLAINT IN O.S 224/2017**| |---|---| ||**FILED BY THE FIRST RESPONDENT DATED**| ||**16.03.2017 BEFORE THE MUNSIFF COURT,**| ||**KOTTAYAM.**| |**Exhibit P2**|**TRUE COPY OF THE WRITTEN STATEMENT FILED**| ||**BY THE PETITIONERS HEREIN IN O.S**| ||**224/2017 DATED 05.08.2017 BEFORE THE**| ||**MUNSIFF COURT, KOTTAYAM.**| |**Exhibit P3**|**TRUE COPY OF THE PLAINT IN O.S 225/2017**| ||**FILED BY THE SECOND RESPONDENT DATED**| ||**MARCH 2017 BEFORE THE MUNSIFF COURT,**| ||**KOTTAYAM.**| |**Exhibit P4**|**TRUE COPY OF THE WRITTEN STATEMENT FILED**| ||**BY THE PETITIONERS HEREIN IN O.S**| ||**225/2017 DATED 05.08.2017 BEFORE THE**| ||**MUNSIFF COURT, KOTTAYAM.**| |**Exhibit P5**|**TRUE COPY OF THE CHEQUE OF FEDERAL BANK,**| ||**KOTTAYAM DATED 01.02.2015 ALLEGEDLY**| ||**ISSUED BY DECEASED DAVIS IN FAVOUR OF**| ||**THE FIRST RESPONDENT.**| |**Exhibit P6**|**TRUE COPY OF THE CHEQUE OF FEDERAL BANK,**| ||**KOTTAYAM DATED 01.02.2015 ALLEGEDLY**| ||**ISSUED BY DECEASED DAVIS IN FAVOUR OF**| ||**THE SECOND RESPONDENT.**| |**Exhibit P7**|**THE ALLEGED PROMISSORY NOTE DATED**| ||**01.02.2015.**| |**Exhibit P7(A)**|**TRUE COPY OF THE ENDORSEMENT OF**| ||**ACKNOWLEDGEMENT ON 01.02.2015 BEHIND**| ||**EXT.P7.**| |**Exhibit P8**|**TRUE COPY OF THE I.A 05/2021 IN O.S**| ||**224/2017 & O.S NO.225/2017 OF THE**| ||**MUNSIFFS COURT, KOTTAYAM FILED BY**| ||**PETITIONERS DATED 27.08.2021.**| |**Exhibit P9**|**TRUE COPY OF THE OBJECTION IN I.A**| ||**NO.5/2021 IN O.S NO.224/2017 OF THE**| ||**MUNSIFFS COURT, KOTTAYAM FILED BY**| ||**RESPONDENTS DATED 03.09.2021.**| O.P(C).No.108/2022 13 |**Exhibit P10**|**TRUE COPY OF THE ORDER DATED 06.01.2022**| |---|---| ||**IN I.A 5/2021 IN O.S NO.224/2017 & O.S**| ||**NO.225/2017 OF ADDL MUNSIFF COURT,**| ||**KOTTAYAM.**| |**Exhibit P11**|**TRUE COPY OF THE DEPOSITION OF PW2**| ||**(SECOND RESPONDENT HEREIN) IN O.S NO.225**| ||**OF 2017 OF THE MUNSIFF COURT, KOTTAYAM**| ||**DATED 2.8.2021.**| |**Exhibit P12**|**TRUE COPY OF THE DEPOSITION OF PW3 IN**| ||**O.S NO.225 OF 2017 OF THE MUNSIFF COURT,**| ||**KOTTAYAM DATED 9.8.2021.**|